And now:Ish <[EMAIL PROTECTED]> writes: From: "Victor Rocha" Chippewa rule raises new divisive issue http://www2.startribune.com/stOnLine/cgi-bin/article?thisStory=75852971 Larry Oakes / Star Tribune Leech Lake Chippewa leaders call TERO a powerful jobs program that will curb discrimination, train more American Indians and put them to work. Many of their non-Indian neighbors say TERO is a brazen power grab that will repel business, violate their rights as U.S. citizens and reduce jobs for everyone. To some people, the Tribal Employment Rights Ordinance could be the state's most culturally divisive Indian issue since treaty-rights fishing and may become a court test of a reservation's ability to regulate non-Indians. The ordinance was passed last winter by the Leech Lake Tribal Council and apparently went unnoticed until the tribe tried to use it last month. Although other Minnesota reservations have employment-rights policies, officials say Leech Lake's goes further in attempting to regulate non-Indians. The ordinance requires that people, businesses or governments that hire building contractors within reservation boundaries give preference to Indian-owned firms. Similar to some on reservations in other states, the ordinance requires that contractors doing work on the reservation have work forces at least 50 percent Indian, except in special circumstances, and it assesses fees on construction projects to fund a TERO compliance staff and train Indians in construction trades. A 3 percent fee is tacked onto any contracted building project over $200,000 and a 2 percent fee on projects between $10,000 and $200,000. Smaller, flat fees apply to less expensive projects. The ordinance authorizes the tribe to inspect job sites and contractors' records to monitor compliance and allows fines of $500 to $5,000 per day for violations. "Historically, contractors that come on the reservation just don't hire tribal members -- I'm sure it's less than 1 percent," said Eli Hunt, chairman of the Leech Lake Band of Chippewa. "Our ordinance is telling them we have qualified, competent workers that are employable, and we want you to hire them." Through TERO, the tribe expects to significantly add to its existing pool of 45 qualified construction workers, Hunt said. Reservation unemployment is about 45 percent, he said. He said the Tribal Council is "listening and paying close attention to the concerns being raised" by those who would be affected, including government officials in Cass County, and is revising TERO. Hunt declined to characterize the nature of the revisions. The ordinance does not apply to the band or its business entities, including casinos. Projects delayed Cass County, which contains most of the Leech Lake Reservation's land and Indian population centers, was 88 percent white and 11 percent Indian when the 1990 census was taken. Only 4 percent of land within reservation boundaries is owned by Indians or held in trust for them by the federal government. Most became aware of TERO when Cass Lake-based businessman Fred Teal and his contractor, Mike Christiansen of Bemidji, were informed by the tribe that the $550,000 addition underway on Teal's grocery store was subject to a $17,500 TERO fee. "It was like a bomb going off," said Virgil Foster, chairman of the Cass County Board. "People are very upset." "People are trying to comprehend how it could be that their property is now subject to another government's jurisdiction," said county administrator Bob Yochum, who added that the county doesn't intend to pay the fees until it has a better understanding of their legality. Several area officials said Christiansen and other contractors have expressed reluctance to bid on future projects within reservation boundaries if TERO stands. Neither Teal nor Christiansen returned telephone calls. Foster said that the tribe has yet to present a bill for Teal's project and that the fee has not been paid. Recently, the County Board set the stage for what may turn into a court battle by passing a resolution that: Prohibits county departments from executing contracts or starting road-repair and other projects that could be construed as subject to a TERO fee. Seeks an opinion from Minnesota Attorney General Mike Hatch on whether the tribe can assess TERO fees on non-Indians for projects on land not owned by Indians or held in trust for them by the federal government. Asks Gov. Jesse Ventura to prohibit state agencies from executing contracts recognizing TERO fees. The Minnesota Department of Transportation has worked TERO Indian employment guarantees into contracts several times in recent years on road projects passing through or near reservations that have such ordinances, said Lucy Kender, communications director for the department. Yochum said Cass County has "millions of dollars of projects that we are holding up on until we find out whether this is legal." Legal questions County Attorney Earl Maus said Leech Lake's TERO puts non-Indian businesses and governments in a quandary, because it requires them to discriminate in hiring, a practice prohibited by federal and state law. Indian tribes as sovereign government entities are exempt from such antidiscrimination mandates as Title VII of the Civil Rights Act and may give preferential treatment to Indians, according to legal provisions cited in the 24-page TERO ordinance. The question is whether tribes can require nonmembers to do so. The Leech Lake Band says it possesses "inherent sovereign authority to regulate the activities of nonmembers" when they do business with the tribe or when their conduct "has some direct effect on the political integrity, economic security or health or welfare of the tribe." That is drawn from language in a U.S. Supreme Court decision that went against an Indian tribe but listed instances in which it might be legal for tribes to regulate non-Indians, said James Johnson, an Olympia, Wash., attorney who specializes in arguing cases against tribes. But the principle is far from solid, Johnson said, noting that two years ago, in another case, the Supreme Court ruled that tribes lack jurisdiction over non-Indians. Johnson said TEROs are fairly common in Western states, especially on reservations where the majority of land is owned by the tribes or held in federal trust for them. Kender said reservations are allowed by a 20-year-old federal law to impose TEROs and that six of Minnesota's 11 reservations have some form of TERO ordinance. "Reservations are sovereign nations," she said. "It's like cooperating with a different country." But Yochum said research by the Association of Minnesota Counties so far has found the other reservations' ordinances to be less sweeping. For example, one adopted by the Mille Lacs Band of Chippewa applies only to projects contracted by the reservation government and assesses a fee of 0.5 percent, which is refundable if the contractor trains Indian workers on the job, said Don Wedll, the band's commissioner of natural resources. "No tribal government we're aware of except the Leech Lake Band has extended the concept to private property and projects that use private funds," Yochum said. Cass County officials say TERO isn't appropriate on the Leech Lake Reservation, which has been largely broken up since the federal government allowed the sale of tribal land in the late 1800s. "It's kind of a taxation without representation thing," County Attorney Maus said. ". . . I can see litigation coming, and I hate to see that, because it creates hard feelings. I represent both [Indians and non-Indians] in this county. I hope we can resolve this matter without litigation." Tribal Chairman Hunt said "we won't have a choice but to litigate it" if TERO fees aren't paid. "Cass County reacts strongly to anything we try to do." He rejects detractors' arguments that economic development on the reservation will be set back because TERO makes it tougher to do business and because customers, including patrons of the tribe's casinos in Walker and Cass Lake, may shy away from a reservation viewed as a legal battleground. "If I dare say it, I detect in the opposition some racism," Hunt said. "When I look at the difference between the city of Walker in 1992, at the onset of gaming, and then how it looks today, I see tremendous growth and expansion," Hunt continued. "I'm convinced much of this is occurring because of our casinos. Now, once again, we're taking another step toward becoming self-sufficient. "I think tribes need to exercise any inherent power they have to maintain and enhance our people's economic growth. [TERO opponents] should support us." Reprinted under the fair use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. &&&&&&&&&&&&&&&&&&&&&&&&&& Tsonkwadiyonrat (We are ONE Spirit) Unenh onhwa' Awayaton http://www.tdi.net/ishgooda/ &&&&&&&&&&&&&&&&&&&&&&&&&&
